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The deal MLB should offer Pete Rose

Randy Freking

As a professional familiar with principles governing workplace conduct, I offer the following press release for consideration by Major League Baseball Commissioner Rob Manfred:

“As commissioner of Major League Baseball, I have completed a thorough investigation of the application of Pete Rose to be reinstated to MLB, after serving a 26-year ban from our sport, including recent media reports that confirm the original decision to ban Mr. Rose. MLB and my office have concluded that Mr. Rose violated the most serious infraction of our sport, and that the original decision and subsequent decisions not to lift the punishment were justified.

“Having said that, I have decided to conditionally reinstate Mr. Rose to MLB. The conditions to his reinstatement are as follows: 1. Mr. Rose will present medical information, acceptable to MLB, that he is not currently suffering from a gambling addiction; 2. Mr. Rose will refrain from gambling of any nature in the future; 3. Mr. Rose acknowledges that he violated MLB’s rule prohibiting gambling on the sport, and that he agreed to his lifetime ban, subject to his right to seek reinstatement after one year; and 4. Mr. Rose will not challenge in any forum a conclusion by MLB that he has violated any of the previous conditions.

“My decision is based upon our society’s belief in forgiveness, and an individual’s opportunity to atone for transgressions, whether of a minor or major nature. ‘Forgive us our trespasses, as we forgive those who trespass against us.’ Mr. Rose remains a great ambassador for our sport and his continued love of the game supports my decision. Mr. Rose has apologized for his actions, and I accept his apology.

“My decision is consistent with MLB’s prohibition against gambling by MLB personnel on baseball, at whatever level of competition. Other personnel should recognize that they will be held to a similar level of punishment for any such violation. We will not tolerate any violations that pose a threat to the integrity of the sport.

“Finally, because there is no serious dispute that Mr. Rose’s accomplishments during his playing career meet the qualifications for induction into the Hall of Fame, I am recommending to the Hall of Fame that Mr. Rose be inducted along with the Class of 2016 next August, in Cooperstown, New York, waiving the requirement that he be formally elected. In this manner, he will not be considered a ‘first ballot inductee,’ one of our sport’s highest honors.”

I believe that baseball and our society will be well-served by issuing this press release by the start of the All-Star Game on July 14 in Pete’s hometown. It is time to free Pete.

See Randy’s editorial here.


Complaining About Harassment To The Harassing Supervisor Is Protected Activity

Jon Allison

Monday Blog
The Sixth Circuit last week affirmed a jury verdict of over 1.5 million dollars in a sexual harassment and retaliation case against New Breed Logistics, a Tennessee supply-chain logistics company.
New Breed has a warehouse in Memphis, Tennessee where temporary employees made up 80% of its workforce during the relevant time frame.  These temporary employees were not given the company handbook containing the company’s sexual harassment policy.
James Calhoun, a New Breed Supervisor, sexually harassed three female temporary employees by regularly making sexual comments and sometimes making sexual contact with them, including pressing his “private parts” against them.  The three women and one male who witnessed the conduct complained to Calhoun and asked him to stop his behavior.  Calhoun told them he would not get in trouble and if anyone went to human resources to complain he would have them fired.  All four were then terminated in quick succession either directly by Calhoun or by someone else after Calhoun claimed there was a performance issue.
After a 7-day jury trial the jury found New Breed liable for sexual harassment and retaliation and awarded over 1.5 million dollars in compensatory and punitive damages and other monetary relief.  New Breed requested a new trial but that request was denied resulting in the appeal to the Sixth Circuit.
With respect to the retaliation claims, on appeal, New Breed argued that complaining only to the harassing supervisor and telling him to stop was not enough to constitute protected activity.  The Sixth Circuit had never addressed this issue before, but the Fifth Circuit had surprisingly found this argument persuasive when it addressed the question previously in 2004.  The Sixth Circuit found that oral complaints about harassment made to the harassing supervisor did constitute protected activity under Title VII.  It noted, “[i]mportantly, the language of the opposition clause does not specify to whom the protected activity must be directed.”
With respect to the harassment claims, the Sixth Circuit found that New Breed could not avoid liability using the Faragher/Ellerth affirmative defense which allows an employer to avoid liability for harassment where it can show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and the plaintiffs “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”  The Court said this defense is simply not available where employees suffer a “tangible employment action” such as termination.  New Breed probably would have had a tough time proving the defense anyway in light of the fact that it failed to distribute its handbook containing the sexual harassment policy to temporary workers and because a call to the complaint hotline about Calhoun was not properly investigated.
The Court also left in tact the punitive damages award finding the evidence sufficient that the employer engaged in the conduct with malice or with reckless indifference to the federally protected rights of the plaintiffs.

The opinion is attached here.


Focus On LGBT Rights

Jon Allison

Monday Blog
Historic Settlement Of Transgender Bias Case
Lakeland Eye Clinic earlier this month agreed to settle the first ever Transgender bias lawsuit brought by the Equal Employment Opportunity Commission.  According to the lawsuit, Lakeland hired Brandi Branson when she was still presenting as a man.  After a few years of employment, she began dressing as a woman and was harassed and ultimately terminated.  To settle the case, Lakeland agreed to pay $150,000, adopt a policy prohibiting discrimination against transgender workers and provide anti-discrimination training to its employees.  Read more here.

Teachers Terminated For Relationship Despite County Ordinance And Church Policy
In Orange County, Florida, two female teachers at Aloma Early Childhood Learning Center, which is run by the Aloma Methodist Church, were terminated after a school administrator discovered they were in a relationship.  According to the two teachers, they were called into the school director’s office and questioned.  They admitted to the relationship.  They were then told they were living in sin, they could no longer work there, and the only way they could keep their jobs was to repent and disavow their lifestyles.  The director tried to talk to the women separately to get them to repent.  Orange County has a human rights ordinance that makes it illegal to terminate employees based on sexual orientation.  In fact, the United Methodist Church has a policy on sexual orientation that calls for equal protection under the law for all gay citizens.  Find more information in this article.

Transgender Employee Ordered To Say His Choice To Act Male Was Not Compliant With Company Policy
Last week Tristan Broussard filed a lawsuit against First Tower Loan, a financial loan company based in Mississippi, alleging he was forced out after the company found out his driver’s license identified him as female.  Broussard was hired in February 2013 as a sales representative.  In March the company noticed while processing his employment papers that he was listed as a female on his driver’s license.  Broussard was questioned about it and told the company he was a transgender male.  Shortly after that, he was asked to sign a document in which he was to promise to dress as a female and stay in rooms with other female employees when traveling on business.  The document also said that his preference to act and dress as a male was not consistent with company policy.  Broussard refused to sign.  This article goes in to greater detail.


The 100th Woman in Congress

Katherine Neff

On Wednesday, November 12, 2014, Alma Adams became the 100th woman to serve in Congress.  While this is an important milestone for women, it took nearly 100 years, since 1917, to accomplish it.  And, although women make up approximately 50 percent of the population, women make up less than 20 percent of the members in Congress.
Of the 100 women in Congress, 32 are women of color, a record, including 18 African Americans, nine Latinas, and five Asian American-Pacific Islanders.
After this month’s election, between one and five women could be joining Representative Adams (four races with female candidates are still undecided).
For more information about these milestones, check out USA Today’s On Politics article by Catalina Camia.


United States Senator Explains “The Dwindling Jury”

Randy Freking

On June 10, United States Senator Sheldon Whitehouse of Rhode Island, a member of the United States Senate Judiciary Committee and a former U.S. Attorney, wrote an article that explains how the Supreme Court and Congress have watered down the Constitution’s guarantee of a right to a civil jury trial.

Many of our clients are surprised to learn that judges have the discretion to dismiss cases prior to trial, despite the Constitutional guarantee, and that many cases are forced into mandatory arbitration to be decided by one or more arbitrators rather than juries.

Unfortunately, many politicians who claim to be “strict constructionists” of the United States Constitution have failed to take any action to prevent the erosion of your constitutional right to a jury trial.

For a more complete analysis, see this link.